Rajender Kumar And Shri Raj Pal vs Mr. Deepak Makwana And Mr. Babu ...
2007 Latest Caselaw 1099 Del

JUDGMENT

J.M. Malik, J.

1. This is a very significant appeal wherein the allegation is that a cloud has been cast over the immovable property of a minor. Sh. Khicchu was the owner of properties No. 20, 28/1, 29 to 33 comprised in Khasra No. 642 situated in village Chandrawali, abadi of Teliwara, Shahdara, Delhi. Sh. Khicchu executed a Will and bequeathed the above said properties in favor of Deepak Makwana, aged about 11 years respondent No. 1, his maternal grand son. After his death, respondent No. 1 has become the absolute owner of the above said properties.

2. Babu Prakash, defendant No. 1/respondent No. 2 is real father as respondent No. 1. He is addicted to liquor and gambling. In the instant suit which was filed through her mother, the minor plaintiff alleged that his father had acted illegally against his welfare and unauthorisedly parted with and delivered the possession of shop No. 32 and 33 to Rajender Kumar and Rajpal, appellants/defendants No. 2 & 3 by receiving a sum of Rs. 65,000/- from the appellants. Both the appellants are in physical possession of the shop since 24.11.1987. All the three defendants i.e. appellants and respondent No. 2 while working in cahoots threatened to remove back wall of shop No. 33. Legal notice was sent to them but it did not ring the bell. Consequently, the instant suit was filed praying for a decree of permanent injunction restraining his father from alienating, transferring and parting with the property No. 29 to 33. It was further prayed that possession of shop No. 32 and 33 be delivered in favor of respondent No. 1 and appellants be asked to pay mesne profits in respect of shop No. 32 and 33.

3. All the three above said defendants defended the present suit. They filed common written statement and enumerated the following defenses. Respondent No. 1 had not sought permission under Order 33 CPC to sue as an indigent person. Babu Prakash, father of respondent No. 1 was his natural guardian. Bimla Devi, mother of the plaintiff/respondent No. 1 had deserted her matrimonial home and children. In order to protect the property of minor, his father had leased out shop No. 32 and 33 at the rental of Rs. 120/- p.m. with effect from 24.11.1987 and rent uptil 04.01.1998 were deposited in nationalised bank. The father had acted for the benefit and welfare of the child. The walls of the shop had crumbled and the ceiling and floor were broken. The above said tenants/appellants got wall's ceiling repaired at their own cost.

4. The Trial Court vide its judgment dated 07.02.2003 decreed the suit against the appellants for recovery of possession in respect of Shop No. 32 and 33. Trial Court also directed that respondent No. 1 was entitled to arrears of mesne profits @ Rs. 120/- with effect from 23.8.89 till the date of decree. Since the plaintiff had sued as indigent person, therefore, he was directed to pay the court fees.

5. The First Appellate Court modified the decree in favor of respondent No. 1 and directed that respondent No. 1/plaintiff shall be entitled to mesne profits @ Rs. 200/- per month with effect from 23.8.1989 till actual realisation, instead of Rs. 120/- per month as directed by the Trial Court. The said order was passed on the basis of oral cross-objections raised by respondent No. 1/plaintiff in view of Apex Court judgment reported in Ravinder Kumar Sharma v. State of Assam and Ors. 81(1999) Delhi Law Times 795 (SC).

6. The following questions of law were drafted by the counsel for the appellants:

(i) Whether mother can sue on behalf of the minor during the life time of father?

(ii) Whether appointment of mother as guardian by the competent court is mandatory before she sues for and on behalf of the minor?

(iii) Whether the respondent can raise cross objection orally at the time of final hearing of the appeal in violation of judgment rendered by the Hon'ble Supreme Court in case titled Banarsi and Ors v. Ramphal ?

(iv) Whether the action of the father letting the property on behalf of the minor son is in violation of Section 8(2) of the Hindu Minority and Guardianship Act?

(v) Whether the father is competent to let out the property of the minor in the capacity of natural guardian of the minor?

(vi) Whether the Civil Court has jurisdiction to entertain and adjudicate suit for possession in respect of suit premises where admittedly the rent is Rs. 120/- per month i.e. Below Rs. 3500/- per month?

(vii) Whether the suit filed by the respondents is barred under Section 50 of the Delhi Rent Control Act?

(viii) Whether the jurisdiction of Civil Court is barred under Section 50 of the Delhi Rent Control Act in respect of the premises where the rent is below 3500/- per month?

(ix) Whether the finding of facts arrived at by the Ld. AdJ ignoring the relevant evidence is bad in law?

(x) Whether the Ld. ADJ committed an error in law while reversing the findings of the Ld. Civil Judge by holding that the father of the Respondent No. 1 had not let out the suit property but had actually sold the same to the appellants?

(xi) Whether the Ld. ADJ committed an error in law while modifying the judgment and decree to the extent that the mesne profits shall be payable @ Rs. 200/- month instead of Rs. 120/- per month which is contrary to the evidence on record.

(xii) Whether the Ld. First Appellate Court was justified in dismissing the review application by a non-speaking order?

7. I have heard the counsel for the appellants at considerable length. He has relied upon above said authority of the Apex Court reported in Banarsi and Ors v. Ramphal , wherein, it was held:

22. For the foregoing reasons we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favor of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate Court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have interfered to correct the error of law committed by the first appellate court.

8. I find force in his argument in a measure. In a recent authority reported in S. Nazeer Ahmed v. State of Mysore , it was held that the memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. I, therefore formulate the following substantial question of law:

1. Whether the respondent can raise cross objection orally at the time of final hearing of the appeal in violation of judgment rendered by Apex Court in its latest authority reported in Banarsi and Ors v. Ramphal (supra)?

9. Now I turn to the other proposed questions of law. Learned Counsel for the appellants opined that other substantial questions of law, as pointed out above, should also be formulated. It was pointed out that tenancy floated by the father of the minor does not come within the mischief envisaged in Section 8(2) of Hindu Minority and Guardianship Act, 1956. Section 8(2) restricts the guardian to lease any part of such property for a term not exceeding five years. He cannot let out the property without obtaining the permission of the Court. Section 8(1), 8(2) and 8(3) of Hindu Minority and Guardianship Act, 1956 are reproduced as follows:

8. Powers of natural guardian - (1) The natural guardian, of a Hindu minor, has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of minor's estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the Court -

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance of the minor or by any person claiming under him.

8 (4) to (6) xxxxxxx

10. Learned Counsel for the appellants submitted that the learned Civil Judge has rightly decided that the tenancy was for month to month, there was no written agreement, in the present case and it be deemed that tenancy was from month to month which can be determined by either party by giving 15 days' notice. Under these circumstances, the father was competent to let out the property on lease. In order to bring his point home, he has cited an authority reported in Kusum Anand v. Smt. Mohinder Kaur 1999 II AD (Delhi) 184 wherein landlord had given power of attorney to Shri D.K. Chadha. Shri D.K. Chadha had rented out the property but neither Power of Attorney was introduced nor Shri D.K. Chadha appeared in the dock. It was held that adverse inferences are to be drawn against landlord for non-production of documents and non-examination of the attorney. It was urged that in absence of the agreement of tenancy, adverse inference should be drawn against respondent/plaintiff and it should be held that letting was for the period of less than five years and thus valid.

11. For the following reasons, I see no merit in this argument. I am in full agreement with the findings given by the First Appellate Court. The First Appellate Court came to the conclusion that the case property was sold. This is an indisputable fact that the father of the child had received a sum of Rs. 65,000/- vide receipt Ex.DW1/P1 which goes to show in unmistakable terms that the said amount was received as "advance" though before the Court it was pleaded in contradiction to the terms of receipt Ex.DW-1/P1 that it was a security deposit. The First Appellate Court rightly held that advance, security and pagri are three different terms. Advance cannot be confused with security or pagri. Advance is given whenever something is to be sold. Advance and security are as different as chalk and cheese. Had it been a security simplicitor, the receipt would have mentioned that the said security would be refundable on what terms and conditions. No agreement, no rent receipt, no other document showing that this was a case of security simplicitor saw the light of the day. The defense has been caught in a pincer of their own making.

12. Learned First Appellate Court rightly held that a tenants does not have any right to carry out the extensive repairs of walls, ceiling and floors. It is apparent that appellants were working as if they were the owners of the suit property. It is also not disputed that the appellants had obtained water and electricity connections in their own name as owners.

13. The written statement filed by the father along with the appellants is clearly indicative of the fact that all the three are working cheek by jowl, having the same interest. In Panni Lal v. Rajinder Singh and Anr. it was held, The provisions of Section 8 are devised to fully protect the property of a minor even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further effected after the permission of the Court has been attained.

14. In a recent authority reported in Nagappan v. Ammasai Gounder and Ors. (2004) 13 Supreme Court Cases 480 it was held, Under Section 8 of Hindu Minority and Guardianship Act, 1956 the natural guardian of a Hindu Minor has the power, subject to the provisions of section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate but the natural guardian cannot without taking previous permission of the court mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor shall attain majority. Under Sub-section (3) disposal of immovable property by a natural guardian in contravention of Sub-section (1) or Sub-section (2) of Section 8 is made voidable at the instance of the minor or any other person claiming under him. Reading of the section itself shows that the sale made by the natural guardian in contravention of Sub-sections (1) and (2) is voidable at the instance of the minor. If the requirement of law is to have the alienation set aside before making any claim in respect of the property sold then a suit without such a prayer would be of no avail.

15. The First Appellate Court rightly quoted the above said observations made in Hariharan v. Parvathikutty Amma @ Sarala 1989 DMC 547 which are reproduced as follows:

Permission is not an empty formality which could be given by the Court for the mere asking. Such a safeguard is intended to protect the interest of minors against the vegaries of natural guardians. Any dealing, without such permission, could concert the transaction as one without authority and as such, void in the eye of law. A natural guardian, who is dealing with the properties of a minor without such permission from a competent court, could be equated to the position of imposter or intermedler who is having no authority. Even the permission that has to be granted by the court is made conditional on the satisfaction of the existence of certain circumstances. These circumstances are necessity and evident advantage of the minor. The note of the guardian must be necessary or reasonable and proper for the benefit of the minor or for realisation, protection or benefit of the minor's estate. Apart from Ext.A.1, wanting prior sanction of Court, none of the other condition also exist in this case. Ext. A.1 indicates that the transaction was entered into solely for the benefit of the plaintiff. No necessity, as far as the minors are concerned, is even mentioned therein.

16. It is also not necessary that the mother must seek the permission of Court to act as a guardian of the minor. She can become next friend of the minor by virtue of Order 32 Rule 4 CPC which runs as follows:

R. 4. Who may act as next friend or be appointed guardian for the suit : (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

17. It must be borne in mind that in this particular case, the interests between mother and the child do not clash but the interests between the father and child do clash.

18. Section 50 Clause (4) of the Delhi Rent Control Act runs as follows:

Section 50(4) Nothing in Sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.

Under these circumstances, it cannot be said that the jurisdiction of of the Civil Court is barred. It is therefore clear that no questions can be formulated in respect of above mentioned questions of law (i),(ii), (iv) to (x) and (xii).

19. In the result, the appeal stands admitted to the extent mentioned above. Respondent No. 1/minor will be at liberty to execute the decree for the recovery of possession of shop No. 32 and 33 and to recover the occupational charges to the extent of Rs. 120 per month. The rest of the controversy regarding the payment of occupational charges whether to the extent of Rs. 120/- or Rs. 200/- per month is kept open and shall be decided at the final disposal of this appeal.

Notice be issued to respondents for 3rd December, 2007. Appellants to file process fee and registered AD covers within a week.

Copy of this order be sent to the Lower Court forthwith.

Case is fixed for final disposal on 3rd December, 2007.